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STATE DEPARTMENT OF EDUCATION
DUE PROCESS APPEAL REVIEW
STATE OF OKLAHOMA
[Parent],
on behalf of M.L., Student,
Petitioner/Appellant,
DPH Case Number 2013
(Appeal)
[NAME] PUBLIC SCHOOLS,
Respondent/Appellee.
APPEARANCES:
For Appellant:
Parent Attorney
For Appellee:
School District Attorney
FINAL ORDER ON APPEAL
PROTECTIVE ORDER
In order to provide confidentiality and insure privacy, throughout this Order, the minor
student shall simply be referred to as Student.
As part and partial of this Final Order, a protective order is hereby decreed. No party to
these proceedings shall publish to any third party the name or identity of student. All documents
pertaining to these proceedings shall be sealed and any copy of any document made pursuant to
the legal request of a third party shall be redacted as to the names, birthdates and other private,
sensitive information.
BACKGROUND
Parent filed an original due process complaint through her attorney on February 28, 2011.
The Second Amended Due Process Complaint of Petitioner, which consisted of sixteen
numbered complaints, some with sub-parts, was the basis for the complaints heard by the hearing
officer at trial. After some legal maneuvering and orders of the hearing officer, the hearing was
basically concentrated on the issues of whether the district failed to provide a free and
appropriate public education (FAPE) (encompassing claims numbered Paragraphs numbered 8,
9, 10, 11, and 12); and (2) Did the District fully and properly evaluate Student (encompassing
claims numbered 2, 3, 7, and 13).
A four day hearing was held on the following dates: Wednesday, June 15, 2011;
Thursday, June 16, 2011; Friday, June 17, 2011; and Thursday, July 21, 2011. Thereafter, a
decision was rendered on August 19, 2011, in favor of the school district. The student’s
representative appealed that decision and it is now before the below signed hearing officer.
By prior agreement of the parties dated September 29, 2011, the briefing deadlines and
the due date for this decision were extended. The parties waived oral arguments and both parties
agreed that the record is complete and the matter was to be considered by the appeal officer after
submission of briefs. The final brief was received on October 31, 2011.
The student who is the subject of this due process appeal was born on [date] and was in
the [number] grade during the 2010-2011 school year. The student was identified as a child
with a disability under the Individuals with Disabilities Act (IDEA) and qualified for special
education and related services under the IDEA disability category of Other Health Impaired as a
result of a diagnosis of attention deficit disorder.
Student filed his Request For Due Process Appeal Review on September 19, 2001. In it,
he asserted 36 grounds for error. They are stated as follows:
a. The Hearing Officer erred by denying Petitioner's May 4, 2011
Application for Independent Evaluations as reflected in the Order dated
May 10, 2011;
b. The Hearing Officer erred by barring all claims prior to February 28,
2011;
c. The Hearing officer erred in determining that the Petitioner failed to
prove, by a preponderance of the evidence, that the Student did not receive
a free appropriate education.
d. The Hearing Officer erred in determining that the Petitioner failed to
prove, by a preponderance of the evidence, that the District's acts,
omissions and/or procedural violations impeded the parents'
opportunity to participate in the IEP process.
e. The Hearing officer erred in determining that the Petitioner failed to
prove, by a preponderance of the evidence, that the District's acts,
omissions and/or procedural violations caused a deprivation of
educational benefit.
f. The Hearing Officer erred in determining that Petitioner failed to prove,
by a preponderance of the evidence, that the District's acts, omissions
and/or procedural violations impeded the Student's right to a free
appropriate public education.
g. The Hearing Officer erred by determining that Petitioner failed to prove, by
a preponderance of the evidence, that the IEP team did not properly
consider ESY services.
h. The Hearing officer erred by determining that the Petitioner failed to
prove, by a preponderance of the evidence, that the Student did not
have the ability to interact with nondisabled peers over the summer,
resulting in a failure to properly consider ESY services.
i. The Hearing officer erred by refusing to receive the testimony of Dr.
[name] and Dr. [name]after accepting reports from each as evidence.
j. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the IEP goals were not
calculated to confer meaningful educational benefit.
k. The Hearing Officer erred by determining that Petitioner failed to prove, by
a preponderance of credible evidence, that the Student regressed.
l. The Hearing Officer erred by determining that a grade appropriate
PASS standard constitutes an IEP goal that is unique to the Students needs.
m. The Hearing Officer erred by determining that end of year achievement
tests are a measure of the Student's progress toward IEP goals.
n. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the IEPs, or
material provisions of the IEPs, were not fully and properly
implemented.
o. The Hearing Officer erred by determining that any lack of
implementation of any part of the IEPs was trivial and did not result in
denial of a free appropriate public education.
p. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the IEP goals were
defective, deficient or not proper to address the unique needs of the
Student.
q. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the Student failed to
make meaningful educational progress during the operative time
period.
r. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the District's failure to
create, preserve and/or maintain records constituted an IDEA
violation.
s. The Hearing Officer erred by failing to find an adverse inference in
favor of the Petitioner due to the Districts destruction of records during
the pendency of the due process hearing, and/or due to the failure to
produce, preserve and/or maintain records.
t. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the District failed to
reevaluate the Student as required by the IDEA.
u. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that [JF]s Brief Synopsis
and suggestions related to speech therapy, including
modifications, educational and/or related services, were not properly
and fully considered by the IEP team.
v. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the Student has a
language impairment, learning disability or central auditory processing
disorder, or that the District failed to properly evaluate for these
disabilities, and/or that the District had sufficient reason to evaluate the
student for these disabilities.
w. The Hearing Officer erred by failing to find that [BB] did not
administer assessments in accordance with the instructions or
protocols provided by the producer of the assessment, in violation of
34 CFR 300.304(c)(1)(v).
x. The Hearing Officer erred by finding that [JF]’s assessment results
are not an accurate indication of the Student's language abilities.
y. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that [MP] was not
qualified, trained and/or knowledgeable to provide
speech/language therapy services, including but not limited to,
diagnosing, administering and interpreting assessments and making
appropriate recommendations for the Student.
z. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the District failed to
provide the Student special education and related services necessary to
address the Student's ADD/ADHD diagnosis through his IEPS.
aa. The Hearing Officer erred by determining that a written behavior plan is
not necessary and/or by determining that a District need only “consider”
strategies to address the Student’s behavior.
bb. The Hearing Officer erred by determining that the Petitioner failed to
establish, by a preponderance of the evidence, that the absence of a
functional behavior assessment constituted a violation of IDEA, caused a
deprivation of educational benefits, or denied the Student a free
appropriate public education.
cc. The Hearing Officer erred by determining that the interventions and
behavior strategies considered and/or implemented by the District to
address the Student's in-class sleeping served the same purpose as a
behavior intervention plan.
dd. The Hearing Officer erred by determining that Petitioner is not entitled
to any relief, including but not limited to, an award of compensatory
education and/or related services, or independent evaluations.
ee. The Hearing Officer erred by refusing to allow Petitioner to make a
record of a prehearing conference as reflected in the Order dated May 16,
2011;
ff. The Hearing Officer erred by prohibiting Petitioners counsel from
making a record(s) or offer(s) of proof during the hearing;
gg. The Hearing Officer erred by refusing to allow the Student to be
advised by his legal counsel and/or by refusing to allow the Student to have
any communications with his legal counsel prior to his testimony in
violation of 20 U.S.C.A. §1415(h)(1);
hh. The Hearing Officer erred by objecting to, impeding and/or prohibiting
Petitioner and/or Petitioner's counsel, during the due process hearing, from
being advised by an advocate with special knowledge and training with
respect to the problems of children with disabilities in violation of 20
U.S_C.A §1415(h)(1);
ii. The Hearing Officer erred by failing to remain impartial and by failing to
inform the Oklahoma State Department of Education that she was not
and/or could not remain impartial in violation of 210 OAC 15-13-5(b);
jj.
The Hearing Officer erred by failing to conduct all phases of the due
process hearing in a professional manner in violation of 210 OAG 15-13-
5(c), as reflected in Orders dated April 1, 2011, May 2, 2011, and
throughout the hearing transcript.
It is not necessary to address each and every separate allegation of error and they will not
be specifically addressed in this opinion unless noted. This opinion will set forth the findings of
fact and conclusions of law applicable to the appeal issues within the scope of the appeal
officer’s duties for review, his authority and the application of law that applies.
FEDERAL LAW APPLICABLE TO CASE
In 2004, Congress reauthorized the Individuals
with
Disabilities
Education
Act
(IDEA). The
act is replete with acronyms used commonly by those familiar with special education due process
issues but foreign to those outside this arena. Several of the common acronyms are referenced by the
parties to this action and this hearing officer. The several words initialized by each particular
acronym generally have a particular legal meaning and definition. Judicial notice is taken of the
stated definition of the acronyms used in this case.
The Individuals with Disabilities Education Act (IDEA)i is the major federal statute for
the education of children with disabilities. Oklahoma receives federal funding under this act
which sets out principles under which special education and related services are to be provided.
As referenced above, the requirements are detailed, legally defined and replete with acronyms.ii
IDEA concerns the provision of special education services to students with disabilities, from
birth up to their 22nd birthday. Congress enacted IDEA to provide students with disabilities the right
to a free
and
appropriate
public
education
(FAPE) in the least
restrictive
environment
(LRE)
through the development and implementation of an Individualized
Education
Program
(IEP) setting
forth goals for each eligible student
Every individual independent school district in Oklahoma must make available a free
appropriate public education (FAPE)iii to all children with disabilities. States and school districts
identify, locate, and evaluate all children with disabilities, regardless of the severity of their
disability, to determine which children are eligible for special education and related services.iv
Each child receiving services has an individual education program (IEP)v spelling out the
specific special education and related services to be provided to meet his or her needs.vi The
parent must be a partner in planning and overseeing the child's special education and related
services as a member of the IEP team. "To the maximum extent appropriate," children with
disabilities must be educated with children who are not disabled. Oklahoma school districts must
provide procedural safeguards to children with disabilities and their parents, including a right to
a due process hearing and the right of appeal.
Various
remedies
are
available
to
students
when
a
school
district
is
not
in
compliance
with
the
federal
guidelines.
Such
relief
must
be
“appropriate”
as
defined
by
the
IDEA.
That
means
the
Rowley
standard
of
“reasonably
calculated
to
provide
some
educational
benefit”
or
“meaningful
educational
benefit”
applies.
Reid
v.
Dist.
of
Columbia,
401
F.3d
516
(D.C.
Cir.
2005).
STANDARD OF REVIEW
The scope of review applied on appeal is that enunciated in Carlisle Area School District
v. Scott P. 62 F.2d 520 (3d Cir. 1995), where the Third Circuit said:
"We thus hold that appeals panels reviewing the fact findings of hearing officers ...
should defer to the hearing officer's findings based upon credibility judgments unless the
non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or
unless the record read in its entirety would compel a contrary conclusion."
The review officer is obligated to conduct an impartial and independent review based on
the entire record on appeal. 34 CFR 300.514. However, due deference also must be given to the
decision of the fact-finder below, for the review is clearly not a hearing de novo. Carlisle Area
Sch. Dist. v. Scott P., 22 IDELR 1017 (3d Cir. 1995), amended, 23 IDELR 293 (3d Cir. 1995).
FINDINGS OF FACT
Any findings of fact, which are properly conclusions of law, are incorporated in this
decision as conclusions of law. Any conclusions of law, which are properly findings of fact, are
incorporated in this decision as findings of fact. In so far as federal law cited above applies, it
shall be considered a conclusion of law as well.
In making the Findings of Fact, the Hearing Officer was under a duty to weigh all
the evidence and assess the credibility of the witnesses by taking into account the
appropriate factors for judging credibility, including but not limited to the demeanor of the
witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the
witness to see, hear, know or remember the facts or occurrences about which the witness
testified, whether the testimony of the witness is reasonable, and whether the testimony is
consistent with all other believable evidence in the case. In this regard, the Appeal Officer
will not overrule the Hearing Officer unless evidence clearly establishing biases or error is
demonstrated.
Unless otherwise noted, the findings of fact set forth by the Hearing Officer shall be
adopted as the findings of fact in this appeal decision along with any new findings of fact
determined by the appeal officer. Since the Hearing Officer in this case considered the entire
record and enumerated the undisputed facts there is no reason to set aside any of her findings of
fact based upon the record as a whole or credibility judgments. Thus, this review is limited to the
application of legal concepts and requirements.vii
There is nothing in the record to indicate that the hearing officer does not possess the
qualifications set forth in 34 CFR § 300.511(c )
Oklahoma has adopted a two tier system in the due process procedure. To guarantee due
process protection to children and their parents in regard to the identification, evaluation,
placement, and appropriate education of the child, either party, who is not in agreement with the
due process hearing decision or expedited due process hearing decision, may appeal the due
process hearing decision to an Appeal Officer. 34 CFR § 300.514.
Pursuant to 34 CFR § 300.514, this Appeal Officer conducted a preliminary review of the
entire record from the due process hearing.
The parties to this proceeding agreed and stipulated that no additional evidence was
needed and no formal hearing was necessary in order for the Appeal Officer to make an
independent decision on completion of the review. Therefore, the parties submitted briefs
establishing their positions and authorities and no oral argument was heard.
A hearing officer is under no mandatory requirement to order any test unless it serves as
an aid to the court in making its determination and other, timely information is not available or,
where such order is incorporated as a requirement in a final decision enforceable against the
district. There is no mandatory language under 34 C.F. R. § 300.502(d).
The IDEA demands that the due process hearing request be made within two years of the
date the aggrieved party knew or should have known of the alleged action forming the basis of
the complaint. See 20 U.S.C. §1415(f)(3)(C). Exceptions to the two-year period are contained in
20 U.S.C. §1415(f)(3)(D), in which a parent may make a claim outside of the two-year period
based on misrepresentations or withholding of information. Both the two-year time frame and its
noted statutory exceptions contained in 20 U.S.C. § 1415 are affirmative defenses, rather than
grants of jurisdictional authority.
There is nothing to indicate that Congress indicated that the adjudicatory officer could
not exercise jurisdiction except in the two-year time frame; in fact, the contrary is expressed,
since the provision immediately following the two-year limitation provision provides for
“exceptions” to the two-year rule, which allows the adjudicatory officer to make a determination
of matters outside of the two-year window. See 20 U.S.C. §1415(f)(3)(D)(exceptions for agency
misrepresentation or for agency withholding of information).
It is up to a hearing officer or ALJ to make the decision as to whether the parent
should have known about the alleged action that forms the basis of the complaint. See
Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706
(2006).viii
As stated by the Appellant, The "knew or should have known" standard requires a fact
intensive inquiry. The parent must be in possession of "critical facts" which indicate that the
child has been hurt and the defendants are responsible for the injury. Draper v. Atlanta Indep.
School Systems, 480 F.Supp.2d 1331, 1340 (N.D. Ga. 2007) affd, 518 F.3d 1275 (11th Cir.
2008).
The Appellee correctly states in its brief that the operative word or “trigger” in the
regulation is the word “action.” Based on a thorough review of the facts and authorities
presented, it is the court’s conclusion that the hearing officer ruled correctly on the issue of
barring claims.
The appropriate inquiry is not whether the student made progress, but whether his IEP
was reasonably calculated to provide FAPE. Progress and regression are equally irrelevant. To
sustain its burden to prove the IEP was reasonably calculated to provide educational benefit, the
district must show: (1) that the IEP contained the required elements and (2) that the annual goals,
benchmarks and short-term objectives were reasonable; and (3) that the methodology it
employed was tailored to meet the goals, objectives and benchmarks. If the goals for the student
with disabilities depart from state standards for students of similar age and grade, the district
must state the reasons for the discrepancy. (Board of Education of the County of Kanawha,
95 F. Supp. 2d 600 (S.D.W.Va. 2000).
School districts determine the appropriate methodology to be used to implement a child’s
IEP. Parents, “no matter how well motivated, do not have a right under IDEA to compel the
school district to provide a specific program or employ a specific methodology for the education
of their disabled child.” Logue By and Through Logue v. Shawnee Mission Pub. Sch. Unified
Sch. Dist. No. 512,959 F. Supp. 1338, 1351 (D. Kan. 1997), aff'd, 153 F.3d 727 (l998); see also
Tucker by Tucker v. Calloway County Bd. of Educ., 136 F.3d 495, 506 (6th Cir. 1998)
Parents are afforded the right to be accompanied and advised by an individual with
special knowledge or training with respect to the problems of children with disabilities.
20 U.S.C. § 1415(h)(1).
The parents were accompanied to the hearing by an advocate, Ms. [C], who,
according to the transcript was whispering in counsel’s ear and passing notes to counsel.
The hearing officer did not approve of this procedure. It appears that the repeated actions
of Ms. [C] throughout the hearing were disruptive, in the view of the hearing officer, and
caused delay in the proceedings. If any error occurred with regard to curtailing the
actions of Ms. [C] in the courtroom, it was harmless error.
The law is quite clear in regarding courtroom administration that the judge is “the
governor of the trial for the purposes of assuring its proper conduct,” Quercia v. U.S., 289 U.S.
466, (1933). HO Welsh had authority over the conduct of the parties and counsel during
the hearing and is charged with ensuring the hearing proceeds in an orderly manner.
The actions of HO Welsh could not be considered a departure from impartiality
but an attempt to use courtroom administration to move the trial along without
unnecessary delay.
As stated in the Tenth Circuit case of Riggins v. Goodman, 572 F.3d 1101, 1112
(10th Cir.2009), “Impartiality of the tribunal is an essential element of due process.”
Impartiality may be affected by a “personal or financial stake” in the outcome or
“personal animosity.” Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426
U.S. 482, 491–92, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976).
A person claiming bias on the part of an administrative tribunal must overcome a
presumption of honesty and integrity in those serving as adjudicators. A substantial
showing of personal bias is required to disqualify a hearing officer or tribunal. Riggins,
572 F.3d at 1112 and Hicks v. City of Watonga, 942 F.2d 737, 746–47 (10th Cir.1991)
The burden rests on the party challenging the hearing officer’s impartiality, and in
relying on United States Supreme Court precedent, the Tenth Circuit has held that this
party “must overcome a presumption of honesty and integrity in those serving as
adjudicators.” Riggins v. Goodman, 572 F.3d 1101, 1112 (10th Cir. 2009) (citing
Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
The burden is quite high indeed. “Mere familiarity with the facts of a case gained
by an agency in the performance of its statutory role does not . . . disqualify a
decisionmaker” and demonstrate actual bias. Hortonville Joint Sch. Dist. No. 1 v.
Hortonville Educ. Ass’n, 426 U.S. 482, 493 (1976); Mangels v. Pena, 789 F.2d 836, 838
(10th Cir.1986). Even “rul[ing] strongly against a party’ in an earlier matter or
participating in the initial proceedings is not enough to show that the decision maker is
biased or partial to one side. Hicks, 942 F.2d at 750-51.
A perusal of the record shows that the hearing officer demonstrated no bias in
favor of the District or prejudice against Petitioner nor did she fail to conduct the hearing
in a professional manner.
The record does not indicate that any objection was made at hearing regarding
The hearing officer’s bias or prejudice before or during the due process hearing. See
York County School District Three, 48 IDELR 178 at p. 8-9 (Jan. 24, 2008) holding that
since the parents did not object to the hearing officer’s impartiality before or during
hearing “they should not now be heard to complain simply because [the hearing officer]
did not agree with them. The same is applicable in the present case; Petitioner may not
complain on appeal when no objection was previously made.
CONCLUSIONS OF LAW
In this case, the testimony of witnesses and the non-testimonial, extrinsic evidence in the
record does not justify a reversal of the hearing officer’s decision.
The Individuals with Disabilities Education Act (IDEA),2 0 U.S.C. 1400-1487(2 000),
obligates school districts to provide children with disabilities a "free appropriate public
education." (§1412(a)(1).
The burden of proof in this administrative hearing challenging an IEP is properly placed
upon the parent who is the party seeking relief. Schaffer v. Weast, 546 U.S. 49 (2005).
Congress enacted IDEA in part, "to ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes special education and
related services designed to meet their unique needs and prepare them for employment and
independent living." 20 U.S.C. § 1400(d)(1)(A); 34 C.F.R. § 300.1(a). To achieve this goal, the
Act requires schools to provide children with a free, appropriate public education (FAPE).
Under 20 USC §1415(f)(3)(E), a hearing officer may find that a child did not receive a
free appropriate public education only if the procedural inadequacies:
(I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the decision making
process regarding the provision of a free appropriate public education to the parents’
child; or
(III) caused a deprivation of educational benefits.
The Appellant did not meet the burden of proof in establishing by a preponderance of the
evidence that the test elements of the law were met. (See O’Toole v. Olathe District Schools
Unified School District No. 233, 144 F.3d 692 (10th Cir. 1998)
DECISION
The August 19, 2011 decision of the Hearing Officer is upheld. Parent did not prove by a
preponderance of the evidence that they should have prevailed.
NOTICE OF APPEAL RIGHTS
Pursuant to 20 U.S.C. § 1415(g) and (i) and 34 C.F.R. §300.516, the decision of the
Appeal Review Officer is final except that any party involved in such hearing who feels
themselves aggrieved by the findings and decision made shall have the right to bring a civil
action in any State court of competent jurisdiction or in a district court of the United States
without regard to the amount in controversy within 90 days of receipt of this Order.
Date: November 18, 2011.
//signature
Gary E. Payne,
Appeal Review Officer
CERTIFICATE OF SERVICE
I hereby certify that on November 18, 2011, I e-mailed and mailed a true, correct and exact
copy of the above and foregoing document, via regular U.S. mail, with postage prepaid, to:
(1) Parent Attorney
(2) Special Education Resolution Center
(3) School District Attorney
//signature
Gary E. Payne
i 20 U.S.C. §1400 et seq.
ii Phrases such as “free appropriate public education” and “least restrictive environment” are phrases of legal art.
iii FAPE is defined in the statute as meaning "special education and related services that -- (A) have been provided at
public expense, under public supervision and direction, and without charge; (B) meet the standards of the State
educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the
State involved; and (D) are provided in conformity with the individualized education program required under section
614(d)." 20 U.S.C. §1401 (9).
iv All children with a disability, as defined by 34 CFR 300.8 , must be educated in the least restrictive environment.
34 CFR 300.114.
v The IEP must include a statement of the child's present levels of academic achievement and functional
performance; a statement of measurable annual goals; a description of how these goals are to be met; a statement of
the special education and related services to be provided; and an explanation of the extent to which the child is to be
educated with children without disabilities.
vi Placement determinations of a special education student, including changes in placement, is a decision that is
usually required to be made by a group of knowledgeable individuals, including the student’s parents, after
considering the continuum of placement options available.
Pursuant to 34 C.F.R. 300.116, in determining the educational placement of a child with a disability, a school district
must ensure that:
a. The placement decision
(i) Is made by a group of persons, including the parents, and
other persons knowledgeable about the child, the meaning of
the evaluation data, and the placement options; and
(ii) Is made in conformity with the Least Restrictive
Environment (“LRE”) provisions set forth in federal law.
b. The child’s placement
(i) Is determined at least annually;
(ii) Is based on the child’s individualized education program
(“IEP”); and
(iii) Is as close as possible to the child’s home.
c. Unless the IEP of a child with a disability requires some other
arrangement, the child is educated in the school that he or she
would attend if nondisabled;
d. In selecting the LRE, consideration is given to any potential
harmful effect on the child or on the quality of services he or she
needs; and
e. A child with a disability is not removed from education in age appropriate
regular classrooms solely because of needed modifications in the general education curriculum.
vii "Due weight" must be given to the hearing officer's findings of fact, which are considered prima facie correct.
(Murray v. Montrose County Sch. Dist., 51 F.3d 921, 927 (10th Cir. 1995)
viii Section 1415(f)(3)( c) of IDEA provides:
[a] parent or agency shall request an impartial due process hearing within two years of the date the parent
or agency knew or should have known about the alleged action that forms the basis of the complaint.
The only exception to the above is where the delay in the parent requesting due process was caused by (1) a specific
misrepresentation made to the parent by the local educational agency (“LEA”) that the LEA had resolved the
complained of problem or (2) a withholding of information by the LEA from the parent which the LEA was required
to provide

STATE DEPARTMENT OF EDUCATION
DUE PROCESS APPEAL REVIEW
STATE OF OKLAHOMA
[Parent],
on behalf of M.L., Student,
Petitioner/Appellant,
DPH Case Number 2013
(Appeal)
[NAME] PUBLIC SCHOOLS,
Respondent/Appellee.
APPEARANCES:
For Appellant:
Parent Attorney
For Appellee:
School District Attorney
FINAL ORDER ON APPEAL
PROTECTIVE ORDER
In order to provide confidentiality and insure privacy, throughout this Order, the minor
student shall simply be referred to as Student.
As part and partial of this Final Order, a protective order is hereby decreed. No party to
these proceedings shall publish to any third party the name or identity of student. All documents
pertaining to these proceedings shall be sealed and any copy of any document made pursuant to
the legal request of a third party shall be redacted as to the names, birthdates and other private,
sensitive information.
BACKGROUND
Parent filed an original due process complaint through her attorney on February 28, 2011.
The Second Amended Due Process Complaint of Petitioner, which consisted of sixteen
numbered complaints, some with sub-parts, was the basis for the complaints heard by the hearing
officer at trial. After some legal maneuvering and orders of the hearing officer, the hearing was
basically concentrated on the issues of whether the district failed to provide a free and
appropriate public education (FAPE) (encompassing claims numbered Paragraphs numbered 8,
9, 10, 11, and 12); and (2) Did the District fully and properly evaluate Student (encompassing
claims numbered 2, 3, 7, and 13).
A four day hearing was held on the following dates: Wednesday, June 15, 2011;
Thursday, June 16, 2011; Friday, June 17, 2011; and Thursday, July 21, 2011. Thereafter, a
decision was rendered on August 19, 2011, in favor of the school district. The student’s
representative appealed that decision and it is now before the below signed hearing officer.
By prior agreement of the parties dated September 29, 2011, the briefing deadlines and
the due date for this decision were extended. The parties waived oral arguments and both parties
agreed that the record is complete and the matter was to be considered by the appeal officer after
submission of briefs. The final brief was received on October 31, 2011.
The student who is the subject of this due process appeal was born on [date] and was in
the [number] grade during the 2010-2011 school year. The student was identified as a child
with a disability under the Individuals with Disabilities Act (IDEA) and qualified for special
education and related services under the IDEA disability category of Other Health Impaired as a
result of a diagnosis of attention deficit disorder.
Student filed his Request For Due Process Appeal Review on September 19, 2001. In it,
he asserted 36 grounds for error. They are stated as follows:
a. The Hearing Officer erred by denying Petitioner's May 4, 2011
Application for Independent Evaluations as reflected in the Order dated
May 10, 2011;
b. The Hearing Officer erred by barring all claims prior to February 28,
2011;
c. The Hearing officer erred in determining that the Petitioner failed to
prove, by a preponderance of the evidence, that the Student did not receive
a free appropriate education.
d. The Hearing Officer erred in determining that the Petitioner failed to
prove, by a preponderance of the evidence, that the District's acts,
omissions and/or procedural violations impeded the parents'
opportunity to participate in the IEP process.
e. The Hearing officer erred in determining that the Petitioner failed to
prove, by a preponderance of the evidence, that the District's acts,
omissions and/or procedural violations caused a deprivation of
educational benefit.
f. The Hearing Officer erred in determining that Petitioner failed to prove,
by a preponderance of the evidence, that the District's acts, omissions
and/or procedural violations impeded the Student's right to a free
appropriate public education.
g. The Hearing Officer erred by determining that Petitioner failed to prove, by
a preponderance of the evidence, that the IEP team did not properly
consider ESY services.
h. The Hearing officer erred by determining that the Petitioner failed to
prove, by a preponderance of the evidence, that the Student did not
have the ability to interact with nondisabled peers over the summer,
resulting in a failure to properly consider ESY services.
i. The Hearing officer erred by refusing to receive the testimony of Dr.
[name] and Dr. [name]after accepting reports from each as evidence.
j. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the IEP goals were not
calculated to confer meaningful educational benefit.
k. The Hearing Officer erred by determining that Petitioner failed to prove, by
a preponderance of credible evidence, that the Student regressed.
l. The Hearing Officer erred by determining that a grade appropriate
PASS standard constitutes an IEP goal that is unique to the Students needs.
m. The Hearing Officer erred by determining that end of year achievement
tests are a measure of the Student's progress toward IEP goals.
n. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the IEPs, or
material provisions of the IEPs, were not fully and properly
implemented.
o. The Hearing Officer erred by determining that any lack of
implementation of any part of the IEPs was trivial and did not result in
denial of a free appropriate public education.
p. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the IEP goals were
defective, deficient or not proper to address the unique needs of the
Student.
q. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the Student failed to
make meaningful educational progress during the operative time
period.
r. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the District's failure to
create, preserve and/or maintain records constituted an IDEA
violation.
s. The Hearing Officer erred by failing to find an adverse inference in
favor of the Petitioner due to the Districts destruction of records during
the pendency of the due process hearing, and/or due to the failure to
produce, preserve and/or maintain records.
t. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the District failed to
reevaluate the Student as required by the IDEA.
u. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that [JF]s Brief Synopsis
and suggestions related to speech therapy, including
modifications, educational and/or related services, were not properly
and fully considered by the IEP team.
v. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the Student has a
language impairment, learning disability or central auditory processing
disorder, or that the District failed to properly evaluate for these
disabilities, and/or that the District had sufficient reason to evaluate the
student for these disabilities.
w. The Hearing Officer erred by failing to find that [BB] did not
administer assessments in accordance with the instructions or
protocols provided by the producer of the assessment, in violation of
34 CFR 300.304(c)(1)(v).
x. The Hearing Officer erred by finding that [JF]’s assessment results
are not an accurate indication of the Student's language abilities.
y. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that [MP] was not
qualified, trained and/or knowledgeable to provide
speech/language therapy services, including but not limited to,
diagnosing, administering and interpreting assessments and making
appropriate recommendations for the Student.
z. The Hearing Officer erred by determining that Petitioner failed to
establish, by a preponderance of the evidence, that the District failed to
provide the Student special education and related services necessary to
address the Student's ADD/ADHD diagnosis through his IEPS.
aa. The Hearing Officer erred by determining that a written behavior plan is
not necessary and/or by determining that a District need only “consider”
strategies to address the Student’s behavior.
bb. The Hearing Officer erred by determining that the Petitioner failed to
establish, by a preponderance of the evidence, that the absence of a
functional behavior assessment constituted a violation of IDEA, caused a
deprivation of educational benefits, or denied the Student a free
appropriate public education.
cc. The Hearing Officer erred by determining that the interventions and
behavior strategies considered and/or implemented by the District to
address the Student's in-class sleeping served the same purpose as a
behavior intervention plan.
dd. The Hearing Officer erred by determining that Petitioner is not entitled
to any relief, including but not limited to, an award of compensatory
education and/or related services, or independent evaluations.
ee. The Hearing Officer erred by refusing to allow Petitioner to make a
record of a prehearing conference as reflected in the Order dated May 16,
2011;
ff. The Hearing Officer erred by prohibiting Petitioners counsel from
making a record(s) or offer(s) of proof during the hearing;
gg. The Hearing Officer erred by refusing to allow the Student to be
advised by his legal counsel and/or by refusing to allow the Student to have
any communications with his legal counsel prior to his testimony in
violation of 20 U.S.C.A. §1415(h)(1);
hh. The Hearing Officer erred by objecting to, impeding and/or prohibiting
Petitioner and/or Petitioner's counsel, during the due process hearing, from
being advised by an advocate with special knowledge and training with
respect to the problems of children with disabilities in violation of 20
U.S_C.A §1415(h)(1);
ii. The Hearing Officer erred by failing to remain impartial and by failing to
inform the Oklahoma State Department of Education that she was not
and/or could not remain impartial in violation of 210 OAC 15-13-5(b);
jj.
The Hearing Officer erred by failing to conduct all phases of the due
process hearing in a professional manner in violation of 210 OAG 15-13-
5(c), as reflected in Orders dated April 1, 2011, May 2, 2011, and
throughout the hearing transcript.
It is not necessary to address each and every separate allegation of error and they will not
be specifically addressed in this opinion unless noted. This opinion will set forth the findings of
fact and conclusions of law applicable to the appeal issues within the scope of the appeal
officer’s duties for review, his authority and the application of law that applies.
FEDERAL LAW APPLICABLE TO CASE
In 2004, Congress reauthorized the Individuals
with
Disabilities
Education
Act
(IDEA). The
act is replete with acronyms used commonly by those familiar with special education due process
issues but foreign to those outside this arena. Several of the common acronyms are referenced by the
parties to this action and this hearing officer. The several words initialized by each particular
acronym generally have a particular legal meaning and definition. Judicial notice is taken of the
stated definition of the acronyms used in this case.
The Individuals with Disabilities Education Act (IDEA)i is the major federal statute for
the education of children with disabilities. Oklahoma receives federal funding under this act
which sets out principles under which special education and related services are to be provided.
As referenced above, the requirements are detailed, legally defined and replete with acronyms.ii
IDEA concerns the provision of special education services to students with disabilities, from
birth up to their 22nd birthday. Congress enacted IDEA to provide students with disabilities the right
to a free
and
appropriate
public
education
(FAPE) in the least
restrictive
environment
(LRE)
through the development and implementation of an Individualized
Education
Program
(IEP) setting
forth goals for each eligible student
Every individual independent school district in Oklahoma must make available a free
appropriate public education (FAPE)iii to all children with disabilities. States and school districts
identify, locate, and evaluate all children with disabilities, regardless of the severity of their
disability, to determine which children are eligible for special education and related services.iv
Each child receiving services has an individual education program (IEP)v spelling out the
specific special education and related services to be provided to meet his or her needs.vi The
parent must be a partner in planning and overseeing the child's special education and related
services as a member of the IEP team. "To the maximum extent appropriate," children with
disabilities must be educated with children who are not disabled. Oklahoma school districts must
provide procedural safeguards to children with disabilities and their parents, including a right to
a due process hearing and the right of appeal.
Various
remedies
are
available
to
students
when
a
school
district
is
not
in
compliance
with
the
federal
guidelines.
Such
relief
must
be
“appropriate”
as
defined
by
the
IDEA.
That
means
the
Rowley
standard
of
“reasonably
calculated
to
provide
some
educational
benefit”
or
“meaningful
educational
benefit”
applies.
Reid
v.
Dist.
of
Columbia,
401
F.3d
516
(D.C.
Cir.
2005).
STANDARD OF REVIEW
The scope of review applied on appeal is that enunciated in Carlisle Area School District
v. Scott P. 62 F.2d 520 (3d Cir. 1995), where the Third Circuit said:
"We thus hold that appeals panels reviewing the fact findings of hearing officers ...
should defer to the hearing officer's findings based upon credibility judgments unless the
non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or
unless the record read in its entirety would compel a contrary conclusion."
The review officer is obligated to conduct an impartial and independent review based on
the entire record on appeal. 34 CFR 300.514. However, due deference also must be given to the
decision of the fact-finder below, for the review is clearly not a hearing de novo. Carlisle Area
Sch. Dist. v. Scott P., 22 IDELR 1017 (3d Cir. 1995), amended, 23 IDELR 293 (3d Cir. 1995).
FINDINGS OF FACT
Any findings of fact, which are properly conclusions of law, are incorporated in this
decision as conclusions of law. Any conclusions of law, which are properly findings of fact, are
incorporated in this decision as findings of fact. In so far as federal law cited above applies, it
shall be considered a conclusion of law as well.
In making the Findings of Fact, the Hearing Officer was under a duty to weigh all
the evidence and assess the credibility of the witnesses by taking into account the
appropriate factors for judging credibility, including but not limited to the demeanor of the
witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the
witness to see, hear, know or remember the facts or occurrences about which the witness
testified, whether the testimony of the witness is reasonable, and whether the testimony is
consistent with all other believable evidence in the case. In this regard, the Appeal Officer
will not overrule the Hearing Officer unless evidence clearly establishing biases or error is
demonstrated.
Unless otherwise noted, the findings of fact set forth by the Hearing Officer shall be
adopted as the findings of fact in this appeal decision along with any new findings of fact
determined by the appeal officer. Since the Hearing Officer in this case considered the entire
record and enumerated the undisputed facts there is no reason to set aside any of her findings of
fact based upon the record as a whole or credibility judgments. Thus, this review is limited to the
application of legal concepts and requirements.vii
There is nothing in the record to indicate that the hearing officer does not possess the
qualifications set forth in 34 CFR § 300.511(c )
Oklahoma has adopted a two tier system in the due process procedure. To guarantee due
process protection to children and their parents in regard to the identification, evaluation,
placement, and appropriate education of the child, either party, who is not in agreement with the
due process hearing decision or expedited due process hearing decision, may appeal the due
process hearing decision to an Appeal Officer. 34 CFR § 300.514.
Pursuant to 34 CFR § 300.514, this Appeal Officer conducted a preliminary review of the
entire record from the due process hearing.
The parties to this proceeding agreed and stipulated that no additional evidence was
needed and no formal hearing was necessary in order for the Appeal Officer to make an
independent decision on completion of the review. Therefore, the parties submitted briefs
establishing their positions and authorities and no oral argument was heard.
A hearing officer is under no mandatory requirement to order any test unless it serves as
an aid to the court in making its determination and other, timely information is not available or,
where such order is incorporated as a requirement in a final decision enforceable against the
district. There is no mandatory language under 34 C.F. R. § 300.502(d).
The IDEA demands that the due process hearing request be made within two years of the
date the aggrieved party knew or should have known of the alleged action forming the basis of
the complaint. See 20 U.S.C. §1415(f)(3)(C). Exceptions to the two-year period are contained in
20 U.S.C. §1415(f)(3)(D), in which a parent may make a claim outside of the two-year period
based on misrepresentations or withholding of information. Both the two-year time frame and its
noted statutory exceptions contained in 20 U.S.C. § 1415 are affirmative defenses, rather than
grants of jurisdictional authority.
There is nothing to indicate that Congress indicated that the adjudicatory officer could
not exercise jurisdiction except in the two-year time frame; in fact, the contrary is expressed,
since the provision immediately following the two-year limitation provision provides for
“exceptions” to the two-year rule, which allows the adjudicatory officer to make a determination
of matters outside of the two-year window. See 20 U.S.C. §1415(f)(3)(D)(exceptions for agency
misrepresentation or for agency withholding of information).
It is up to a hearing officer or ALJ to make the decision as to whether the parent
should have known about the alleged action that forms the basis of the complaint. See
Analysis of Comments and Changes to 2006 IDEA Part B Regulations, 71 Fed. Reg. 46706
(2006).viii
As stated by the Appellant, The "knew or should have known" standard requires a fact
intensive inquiry. The parent must be in possession of "critical facts" which indicate that the
child has been hurt and the defendants are responsible for the injury. Draper v. Atlanta Indep.
School Systems, 480 F.Supp.2d 1331, 1340 (N.D. Ga. 2007) affd, 518 F.3d 1275 (11th Cir.
2008).
The Appellee correctly states in its brief that the operative word or “trigger” in the
regulation is the word “action.” Based on a thorough review of the facts and authorities
presented, it is the court’s conclusion that the hearing officer ruled correctly on the issue of
barring claims.
The appropriate inquiry is not whether the student made progress, but whether his IEP
was reasonably calculated to provide FAPE. Progress and regression are equally irrelevant. To
sustain its burden to prove the IEP was reasonably calculated to provide educational benefit, the
district must show: (1) that the IEP contained the required elements and (2) that the annual goals,
benchmarks and short-term objectives were reasonable; and (3) that the methodology it
employed was tailored to meet the goals, objectives and benchmarks. If the goals for the student
with disabilities depart from state standards for students of similar age and grade, the district
must state the reasons for the discrepancy. (Board of Education of the County of Kanawha,
95 F. Supp. 2d 600 (S.D.W.Va. 2000).
School districts determine the appropriate methodology to be used to implement a child’s
IEP. Parents, “no matter how well motivated, do not have a right under IDEA to compel the
school district to provide a specific program or employ a specific methodology for the education
of their disabled child.” Logue By and Through Logue v. Shawnee Mission Pub. Sch. Unified
Sch. Dist. No. 512,959 F. Supp. 1338, 1351 (D. Kan. 1997), aff'd, 153 F.3d 727 (l998); see also
Tucker by Tucker v. Calloway County Bd. of Educ., 136 F.3d 495, 506 (6th Cir. 1998)
Parents are afforded the right to be accompanied and advised by an individual with
special knowledge or training with respect to the problems of children with disabilities.
20 U.S.C. § 1415(h)(1).
The parents were accompanied to the hearing by an advocate, Ms. [C], who,
according to the transcript was whispering in counsel’s ear and passing notes to counsel.
The hearing officer did not approve of this procedure. It appears that the repeated actions
of Ms. [C] throughout the hearing were disruptive, in the view of the hearing officer, and
caused delay in the proceedings. If any error occurred with regard to curtailing the
actions of Ms. [C] in the courtroom, it was harmless error.
The law is quite clear in regarding courtroom administration that the judge is “the
governor of the trial for the purposes of assuring its proper conduct,” Quercia v. U.S., 289 U.S.
466, (1933). HO Welsh had authority over the conduct of the parties and counsel during
the hearing and is charged with ensuring the hearing proceeds in an orderly manner.
The actions of HO Welsh could not be considered a departure from impartiality
but an attempt to use courtroom administration to move the trial along without
unnecessary delay.
As stated in the Tenth Circuit case of Riggins v. Goodman, 572 F.3d 1101, 1112
(10th Cir.2009), “Impartiality of the tribunal is an essential element of due process.”
Impartiality may be affected by a “personal or financial stake” in the outcome or
“personal animosity.” Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass'n, 426
U.S. 482, 491–92, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976).
A person claiming bias on the part of an administrative tribunal must overcome a
presumption of honesty and integrity in those serving as adjudicators. A substantial
showing of personal bias is required to disqualify a hearing officer or tribunal. Riggins,
572 F.3d at 1112 and Hicks v. City of Watonga, 942 F.2d 737, 746–47 (10th Cir.1991)
The burden rests on the party challenging the hearing officer’s impartiality, and in
relying on United States Supreme Court precedent, the Tenth Circuit has held that this
party “must overcome a presumption of honesty and integrity in those serving as
adjudicators.” Riggins v. Goodman, 572 F.3d 1101, 1112 (10th Cir. 2009) (citing
Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
The burden is quite high indeed. “Mere familiarity with the facts of a case gained
by an agency in the performance of its statutory role does not . . . disqualify a
decisionmaker” and demonstrate actual bias. Hortonville Joint Sch. Dist. No. 1 v.
Hortonville Educ. Ass’n, 426 U.S. 482, 493 (1976); Mangels v. Pena, 789 F.2d 836, 838
(10th Cir.1986). Even “rul[ing] strongly against a party’ in an earlier matter or
participating in the initial proceedings is not enough to show that the decision maker is
biased or partial to one side. Hicks, 942 F.2d at 750-51.
A perusal of the record shows that the hearing officer demonstrated no bias in
favor of the District or prejudice against Petitioner nor did she fail to conduct the hearing
in a professional manner.
The record does not indicate that any objection was made at hearing regarding
The hearing officer’s bias or prejudice before or during the due process hearing. See
York County School District Three, 48 IDELR 178 at p. 8-9 (Jan. 24, 2008) holding that
since the parents did not object to the hearing officer’s impartiality before or during
hearing “they should not now be heard to complain simply because [the hearing officer]
did not agree with them. The same is applicable in the present case; Petitioner may not
complain on appeal when no objection was previously made.
CONCLUSIONS OF LAW
In this case, the testimony of witnesses and the non-testimonial, extrinsic evidence in the
record does not justify a reversal of the hearing officer’s decision.
The Individuals with Disabilities Education Act (IDEA),2 0 U.S.C. 1400-1487(2 000),
obligates school districts to provide children with disabilities a "free appropriate public
education." (§1412(a)(1).
The burden of proof in this administrative hearing challenging an IEP is properly placed
upon the parent who is the party seeking relief. Schaffer v. Weast, 546 U.S. 49 (2005).
Congress enacted IDEA in part, "to ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes special education and
related services designed to meet their unique needs and prepare them for employment and
independent living." 20 U.S.C. § 1400(d)(1)(A); 34 C.F.R. § 300.1(a). To achieve this goal, the
Act requires schools to provide children with a free, appropriate public education (FAPE).
Under 20 USC §1415(f)(3)(E), a hearing officer may find that a child did not receive a
free appropriate public education only if the procedural inadequacies:
(I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the decision making
process regarding the provision of a free appropriate public education to the parents’
child; or
(III) caused a deprivation of educational benefits.
The Appellant did not meet the burden of proof in establishing by a preponderance of the
evidence that the test elements of the law were met. (See O’Toole v. Olathe District Schools
Unified School District No. 233, 144 F.3d 692 (10th Cir. 1998)
DECISION
The August 19, 2011 decision of the Hearing Officer is upheld. Parent did not prove by a
preponderance of the evidence that they should have prevailed.
NOTICE OF APPEAL RIGHTS
Pursuant to 20 U.S.C. § 1415(g) and (i) and 34 C.F.R. §300.516, the decision of the
Appeal Review Officer is final except that any party involved in such hearing who feels
themselves aggrieved by the findings and decision made shall have the right to bring a civil
action in any State court of competent jurisdiction or in a district court of the United States
without regard to the amount in controversy within 90 days of receipt of this Order.
Date: November 18, 2011.
//signature
Gary E. Payne,
Appeal Review Officer
CERTIFICATE OF SERVICE
I hereby certify that on November 18, 2011, I e-mailed and mailed a true, correct and exact
copy of the above and foregoing document, via regular U.S. mail, with postage prepaid, to:
(1) Parent Attorney
(2) Special Education Resolution Center
(3) School District Attorney
//signature
Gary E. Payne
i 20 U.S.C. §1400 et seq.
ii Phrases such as “free appropriate public education” and “least restrictive environment” are phrases of legal art.
iii FAPE is defined in the statute as meaning "special education and related services that -- (A) have been provided at
public expense, under public supervision and direction, and without charge; (B) meet the standards of the State
educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the
State involved; and (D) are provided in conformity with the individualized education program required under section
614(d)." 20 U.S.C. §1401 (9).
iv All children with a disability, as defined by 34 CFR 300.8 , must be educated in the least restrictive environment.
34 CFR 300.114.
v The IEP must include a statement of the child's present levels of academic achievement and functional
performance; a statement of measurable annual goals; a description of how these goals are to be met; a statement of
the special education and related services to be provided; and an explanation of the extent to which the child is to be
educated with children without disabilities.
vi Placement determinations of a special education student, including changes in placement, is a decision that is
usually required to be made by a group of knowledgeable individuals, including the student’s parents, after
considering the continuum of placement options available.
Pursuant to 34 C.F.R. 300.116, in determining the educational placement of a child with a disability, a school district
must ensure that:
a. The placement decision
(i) Is made by a group of persons, including the parents, and
other persons knowledgeable about the child, the meaning of
the evaluation data, and the placement options; and
(ii) Is made in conformity with the Least Restrictive
Environment (“LRE”) provisions set forth in federal law.
b. The child’s placement
(i) Is determined at least annually;
(ii) Is based on the child’s individualized education program
(“IEP”); and
(iii) Is as close as possible to the child’s home.
c. Unless the IEP of a child with a disability requires some other
arrangement, the child is educated in the school that he or she
would attend if nondisabled;
d. In selecting the LRE, consideration is given to any potential
harmful effect on the child or on the quality of services he or she
needs; and
e. A child with a disability is not removed from education in age appropriate
regular classrooms solely because of needed modifications in the general education curriculum.
vii "Due weight" must be given to the hearing officer's findings of fact, which are considered prima facie correct.
(Murray v. Montrose County Sch. Dist., 51 F.3d 921, 927 (10th Cir. 1995)
viii Section 1415(f)(3)( c) of IDEA provides:
[a] parent or agency shall request an impartial due process hearing within two years of the date the parent
or agency knew or should have known about the alleged action that forms the basis of the complaint.
The only exception to the above is where the delay in the parent requesting due process was caused by (1) a specific
misrepresentation made to the parent by the local educational agency (“LEA”) that the LEA had resolved the
complained of problem or (2) a withholding of information by the LEA from the parent which the LEA was required
to provide